Published on April 2nd, 2020 📆 | 5276 Views ⚑0
US judge: First Amendment protects Call of Duty’s use of Humvees
A federal judge ruled this week that Activision has a first amendment right to include Humvees in its Call of Duty titles, despite vehicle manufacturer AM General’s claims of trademark infringement and false advertising for the in-game use of the military vehicles.
The ruling stems from a lawsuit first filed by AMG in 2017, which suggested that Call of Duty players were being “deceived into believing that AM General licenses the games or is somehow connected with or involved in the creation of the games.” That’s not a completely ridiculous idea, since Activision and other major game manufacturers generally purchased licenses for their in-game guns until 2013.
In his ruling this week, though, District Judge George B. Daniels dismissed AM General’s claim. That decision hinged in part on a 1989 precedent that established that artistic works could make reference to outside trademarks as long as the usage was relevant to the work and did not “explicitly mislead as to the source of the content or work.”
The court then went through an eight-prong “Polaroid” test (named after a precedential 1961 case) to determine whether Activision’s use of Humvees amounted to a legally relevant “explicit misleading” that would trump First Amendment protections. As part of that argument, AM General submitted a survey it conducted showing 16 percent of consumers “were confused as to AM General’s association with Call of Duty.” As Judge Daniels notes, “less than 20 percent confusion regarding two companies’ ‘association’… is at most some confusion” and does not amount to the “particularly compelling” confusion required by legal precedent.
The court also cited a 2011 decision regarding the use of a Louis Vuitton bag in The Hangover II, which said that “moviegoers are sophisticated enough to know that the mere presence of a brand name in a film, especially one that is briefly and intermittently shown, does not indicate the brand sponsored the movie.” Judge Daniels added that “there is no reason to believe that video game players are any less astute” than those movie viewers.
More importantly, though, Daniels writes that “if realism is an artistic goal, then the presence in Modern Warfare games of vehicles employed by actual militaries undoubtedly furthers that goal.” And even if that commitment to realism causes a modicum of brand confusion in this case, it’s not enough to override the First Amendment protections that video games have enjoyed since a 2011 Supreme Court ruling.
While there are no major new legal protections or precedents established by this ruling, it’s nice to have yet another case that treats games similarly to books, movies, and music, where incidental use of brand names does not generally raise legal trademark complaints.